Gujarat High Court

Lathi Nagarpalika vs Kanaiyalal Virjibhai Sarvaiya on 11 June, 2021

Bench: A. P. Thaker

     C/SCA/7888/2009                                             JUDGMENT DATED:

                                       11/06/2021


          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R /SPECIAL CIVIL APPLICATION NO. 7 888 of 20 09


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                              Sd / -

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1     Whether Reporters of Local Papers may be allowed                       No
      to see the judgment ?

2     To be referred to the Reporter or not ?                                No

3     Whether their Lordships wish to see the fair copy                      No
      of the judgment ?

4     Whether this case involves a substantial question                      No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                            LATHI NAGARPALIKA
                                   Versus
                       KANAIYALAL VIRJIBHAI SARVAIYA
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Appearance:
MS KHYATI P HATHI(346) for the Petitioner(s) No. 1
MR TR MISHRA(483) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 11 / 0 6 / 2 0 21

                               ORAL JUDGMENT

1. Being aggrieved and dissatisfied with award dated

29.2.2009 passed by the Industrial Tribunal, Bhavnagar in

Complaint (IT) No.4 of 2004 filed in Reference (IT) No.65 of 2002,

by which the workman was ordered to be reinstated as a daily

wager "Safai Karmachar" with 50% backwages on the ground

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that there was a breach of Section 33 of the Industrial Disputes

Act, 1948, Lathi Nagar Palika has filed present petition on the

ground that the order of reinstatement of a daily wager was not

justified; the order of payment of 50% backwages is also not

warranted in the facts and circumstances of the case and

Reference (IT) No.65 of 2002 had become defunct in view of "No

Instruction Purshis" given in 2006, which was not taken into

consideration by the Industrial Tribunal, while passing the

impugned order.

2. The parties are referred to in this order as "employer" and

the "workman" respectively.

3. The employer has contended that the workman was

admittedly a daily wager and was never recruited by following

the due procedure as prescribed in the Rules. It is also

contended that the workman has not worked for 240 days in a

year. It is further contended that the Tribunal has committed an

obvious error in finding that burden of proof to prove attendance

of 240 days is on Nagar Palika. It is also contended that there

was no proof that the workman has worked for more than 8

years as daily wager. According to the employer, there was no

justification for passing the order of reinstatement and

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backwages. It is also contended that the Tribunal has misread

the judgment of the Full Bench of this Court in the case of

Amreli Municipality and judgment of the Apex Court in the

case of State of Karnataka v. Uma Devi.

4. It is also contended that the workman was admittedly a

daily wager and had no right to propose that there was no

question of passing any order of backwages since he has not

worked. According to the employer, the services of the workman

was brought to an end in the year 2003, whereas the complaint

has been made by the workman in the year 2004. It is also

contended that Reference (IT) No.65 of 2002 was never seriously

contested right from 2002 and "No Instruction Purshis" was

submitted as back as in the year 2006, therefore, there was no

justification on the part of the Tribunal to proceed with hearing

of the complaint in the year 2009 and to pass impugned order of

reinstatement and backwages. On all these grounds, it is

contended by the employer that order passed by the Tribunal is

erroneous and same deserves to be set aside and, accordingly,

prayed to allow present petition by setting aside the impugned

order of the Tribunal.

      C/SCA/7888/2009                                  JUDGMENT DATED:

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5. Heard Ms.Khyati Hathi, learned advocate for the petitioner-

Nagar Palika and Mr.U.T.Mishra, learned advocate for the

respondent-workman through video conferencing.

6. Ms.Khyati Hathi, learned advocate for the petitioner

submitted that same facts, which are narrated in the petition

and has submitted that the complaint was made by the

workman in 2004. While inviting the attention of the Court to

the written statement filed by the Nagar Palika before the

Tribunal in Reference (IT) No.65 of 2002 in Complaint No.4 of

2004, wherein the same grievance has been raised, a specific

averment is made that the workman has worked for 173 days

only. She has also invited the attention of the Court to the fact,

stated in the written statement, that workman has worked for 17

days in August, 20 days in September, 24 days in October and 2

days in November 2003 and, therefore, the version of the

workman regarding his termination on 6.8.2003 is not tenable.

She has also invited the attention of the Court to the averment

made in written statement that the Labour Court or the Tribunal

cannot direct the Panchayat or Nagar Palika to make order of

permenancy. She has also submitted that demand of workman

was premature. While inviting the attention of the Court to the

deposition of the workman, she has submitted that the workman

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has admitted in his cross-examination that he has not filed the

case through Union for making him permanent. She has also

invited the attention of this Court to "No Instruction Purshis"

passed by the representative of the Union dated 27.11.2006,

which is at page 32-A of the compilation, wherein it is averred by

the representative of the Union that though he has written

letters to the workman but he did not reply to them and has not

contacted him, therefore, he is not ready to represent him.

6.1 She has also submitted that workman has not worked

during the period from 2003 to 2009 and, therefore, there was

no question of granting any backwages to him. She has also

submitted that before filing present petition, workman has been

reinstated in the year 2009. Accordingly to her submission, in

reality, main reference has become infrucutous in the year 2009.

She has also submitted that there is no breach of Section 33-A

of the Industrial Disputes Act since the main petition was

pending for adjudication. She has also submitted that if the

Court comes to the conclusion that the order of the Tribunal

regarding reinstatement of workman is proper then also the

order granting backwages upto 50% is on higher side. She has

also submitted that the observation made by the Tribunal

regarding Section 33-A of the Act is also not proper. She has

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relied upon decision of this Court in the case of Amreli

Municipality v. Gujarat Pradesh Municipal Employees Union

reported in 2004 (3) GLR 1841.

6.2 In view of above, she has prayed to allow present petition.

She has alternatively requested that if the Court is not inclined

to allow present petition, the matter may be remanded back

since the backwages are on higher side.

7. Mr.U.T.Mishra, learned advocate for the respondent-

workman has supported the impugned order of the Tribunal

granting reinstatement as well as payment of 50% backwages.

He has submitted that the complaint of the workman was

pending before the Tribunal and, therefore, under Section 33-A

of the Act, the employer cannot change the service condition of

the workman. He has also supported the reasoning of the

Tribunal especially paragraphs 9 and 13 at page 43 and 46 of

the compilation. He has also submitted that since the workman

has been reinstated in 2009, the issue is only regarding 50%

backwages. He has also submitted that this order of 50%

backwages is just and proper and this Court may not interfere

with the impugned order. He has relied upon the decision in the

case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v.

      C/SCA/7888/2009                                             JUDGMENT DATED:

                                    11/06/2021

Ramgopal Sharma and Others reported in (2002) 2 SCC 244.

He has prayed to dismiss present petition.

8. Having considered the submissions made by learned

advocates for both sides coupled with the material placed on

record and the decisions referred to herein above, it appears that

there is no dispute regarding relationship of workman and

employer between the parties. It also appears that the workman

has filed Statement of Demand, which came to be registered as

Reference (IT) No.65 of 2002. It also appears from record that

representative of the Union has withdrawn his appearance from

the matter on 27.11.2006 on the ground that the workman was

not responding to his correspondence. It also appears that the

complaint under Section 33-A of the Act has been filed by the

workman, which came to be registered as Complaint (IT) No.4 of

2004. In the said complaint, a stand taken by the workman is

that though his Reference (IT) No.65 of 2002 was pending, his

services came to be terminated without any reason on

6.11.2003. It is also the stand of the workman that the employer

has not followed any legal procedure as per the provisions of the

Act. Thus, the picture emerging from the record is that when the

reference was pending the employer has terminated the services

of the workman with effect from 6.11.2003 and the complaint

under Section 33-A of the Act came to be filed on 20.6.2004.

      C/SCA/7888/2009                                     JUDGMENT DATED:

                                 11/06/2021

9. It is worthwhile to refer to Sections 33 and 33-A of the Act,

which read as under:-

"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-

(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2 an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--

(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

1. Subs. by Act 36 of 1956, s. 21, for s. 33 (w. e. f. 10- 3- 1957 ). 2. Ins. by Act 36 of 1964, s. 18 (w. e. f. 19- 12-

 C/SCA/7888/2009                                      JUDGMENT DATED:

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     1964 ).

(3) Notwithstanding anything contained in sub- section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute--

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.-- For the purposes of this sub- section, a" protected workman", in relation to an establishment, means a workman who, being 1 a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub- section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, 2 an arbitrator, a] labour Court, Tribunal or National Tribunal under the proviso to sub- section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 3 within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:] 4 Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit: Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub- section had expired without such proceedings being completed.]

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33A. Special provision for adjudication as to whether conditions of service, etc., changed during the pendency of proceedings.-Where an employer contravens the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner,-

(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly."

10. In the case of Amreli Municipality v. Gujarat Pradesh

Municipal Employees Union reported in 2004 (3) GLR 1841, it

is observed as under:-

"We accordingly give following guidelines. (1) If casual workers or daily rated workers are not required by the Local bodies and whose services are likely to be terminated, they should be relieved on the principle of "last come, first go". In the event of filling up the posts in future, those who are eligible and qualified from and amongst the relieved workmen shall be preferred by waiving the age limit.

(2) If the workmen who have continued for years as temporary employees, in the event of their termination, the authorities will see that no unqualified person is appointed in their place.

    C/SCA/7888/2009                                   JUDGMENT DATED:

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(3) The question of regularisation can also be considered by the authorities before terminating services provided the workers are eligible on the sanctioned posts. (4) If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law/ rules/ circulars within the budgetary provisions. "

10.1 In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank

Limited v. Ramgopal Sharma and Others reported in (2002) 2

SCC 244, it is held as under:-

B. Labour Law - Industrial Disputes Act, 1947 - Ss.33 (2)

(b) proviso, 33-A, 10 (1) (d) and 31 (1) - Requirements of proviso to S.33 (2) (b) - Nature of - Held, mandatory - Hence, failure to make application for approval of the order of discharge or dismissal or withdrawal of such application after making it, held, renders the order of discharge or dismissal void and inoperative - Punjab Beverages (P) Ltd. case (1978) 2 SCC 144 taking a contrary view and holding that the remedy of the employee in such a case lay in Ss. 31, 33-A and 10(1)(d), overruled - Interpretation of Statutes - Construction in favour of advancement of the object of the statute - Applied - Anomaly or absurdity or hardship or redundancy or repugnancy - Rule against redundancy applied.

11. In view of decision of the Apex Court in the case of Jaipur

Zila Sahkari Bhoomi Vikas Bank Limited v. Ramgopal Sharma

(supra), especially paragraph 15, when there is a reference

pending, the employer cannot resort to change of service

condition of the workman or cannot discharge or terminate the

services of the workman without written permission of the

Labour Court or the Industrial Court. Admittedly, in the present

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case, no such action has been taken out by the present

petitioner. Therefore, the observations and the reasoning given

by the Labour Court granting reinstatement of the workman

cannot be faulted with. The decision of the Labour Court in

granting relief of reinstatement is proper one. However, on

perusal of the material, it clearly appears that the Labour Court

has committed serious error of facts and law in granting

backwages of 50% as the reference was filed by the workman in

2002 and they have not produced any evidence regarding non-

availability of the work to the workman during pedency of both

the proceedings. When there is no legal evidence produced by

the workman, either oral or documentary, regarding his

unemployment during the pedency of reference or complaint, the

backwages upto 50% is on higher side. However, at the same

time, the employer has resorted to action of termination of

service of the workman without obtaining any sanction from the

Labour Court/Tribunal, which is not in consonance with Section

33-A of the Act and the employer cannot take a stand that the

workman was getting some sort of employment during the

pendency of the matters till termination of service of the

workman. In the present case, considering the fact that original